KUALA LUMPUR : Malaysia's ex-premier
Mahathir Mohamad announced Wednesday the creation of a war crimes
tribunal that would focus on victims of abuse in Iraq, Lebanon and
the Palestinian territories.

He said the tribunal -- and an investigating commission linked to it
-- was necessary as an alternative to the International Criminal
Court in The Hague, which he accused of bias in its selection of
cases to cover.

The court does not have government backing and Mahathir admitted he
needed money to set it up and that it would be hard to persuade
heads of government accused of wrongdoing to attend.

"There will be people who take this thing seriously," he said. "This
is not a show."

"The one punishment that most leaders are afraid of is to go down in
history with a certain label attached to them," he added at a press
conference.

"In history books they should be written down as war criminals and
this is the kind of punishment we can make to them.

"We cannot arrest them, we cannot detain them, and we cannot hang
them the way they hanged Saddam Hussein."

Mahathir, who played a high-profile role on the international stage
before stepping down in 2003, has seized on the issue of conflict in
the Middle East during his retirement.

He did not specify who would be targeted by the tribunal, but said
it would focus on abuses in Iraq, Palestinian territories and
Lebanon -- indicating it was aimed at United States and Israeli
military actions.

"We think that it is time we set up a body, a tribunal, which will
give an opportunity for these people to bring up their complaints to
be heard."

Mahathir also plans a war crimes commission which would first
investigate allegations of abuse. He will sit on its panel along
with five Malaysian legal experts, including one from the nation's
hardline Islamic opposition party.

The tribunal would be staffed by former judges and law professors
from home and abroad, including a Malaysian former chief justice, he
said.

However he conceded it would be difficult to obtain the evidence
needed to conduct a thorough trial and that the proposal was short
on funding.

"We are asking for donations from interested people," he said. "It's
not been easy."

Mahathir will next week host a war crimes conference attended by
some 17 Palestinians, Iraqis and Lebanese who allege they are the
victims of abuse and torture.

The new commission will then begin investigating their cases. The
tribunal itself, provided its judges have been appointed, would
operate as soon as the inquiry panel has referred its first dossier
upward.

Mahathir did not specify if the court would have a defence and
prosecution, saying the accused would be invited to send their
representative, but vowed it would not be like the "kangaroo court"
that tried Saddam. - AFP /dt

Mahathir's war crimes
tribunal under fire

Tue Feb 13, 2:53 AM ET

A war crimes tribunal set up by Malaysian
ex-premier Mahathir Mohamad has been criticised by a
former United Nations senior official and activists,
who say the body lacks legitimacy.

The former United Nations Special Rappporteur on
the Independence of Judges and Lawyers, Param
Cumaraswamy, said there was no legal basis for the
tribunal which would become a "circus".

He also told the local Sun newspaper Tuesday that
Mahathir during his tenure as premier had not signed
Malaysia onto a statute establishing the
International Criminal Court in 1998.

"If he was genuinely concerned about justice to
victims of war and bringing war criminals to trial,
he should have got the government to sign the
statute then. He never bothered," Param was quoted
as saying.

"The government to date is not a signatory to the
statute," he added.

Mahathir last week launched a war crimes tribunal
which he said will focus on victims of abuse in
Iraq, Lebanon and the Palestinian territories,
saying the existing International Criminal Court in
The Hague was biased.

His tribunal carries no legal authority, is not
backed by any government and has limited ability to
gather evidence or compel accused persons to appear.

However, Mahathir, who has accused British
premier Tony Blair and US President George W. Bush
of being war criminals, said it will ensure
offenders' wrongdoings are recorded in history.

Mahathir, who played a high-profile role on the
international stage before stepping down in 2003,
has seized on the issue of conflict in the Middle
East during his retirement.

Param, whose former role was to monitor the
independence of judges and lawyers worldwide and
report to the UN, questioned how the tribunal would
apply fair trial principles if accused war criminals
did not appear before it.

Malaysian rights group Suaram said it had
concerns over procedures to be used by the tribunal,
which will operate outside of the international
community.

"There is a whole range of questions over the
impartiality of the tribunal and also their
credibility, because there are no international
processes in terms of agreeing on the basis for the
tribunal," executive director Yap Swee Seng told AFP.

"In order to have your moral pressure you have to
convince the world the tribunal has the authority,
impartiality and credibility," he said.

"But when there is already an International
Criminal Court and you are not adhering to that ...
I don't think you'll win any credibility," he said.

THE KUALA LUMPUR WAR CRIMES COMMISSION & WAR CRIMES TRIBUNAL

The recently
constituted Kuala Lumpur War Crimes Commission (KLWCC) and the Kuala Lumpur
War Crimes Tribunal (KLWCT) have been criticized as having no legal basis in
domestic or international law and, therefore, lacking in jurisdiction to try
anyone for any crime.

It is submitted that
the KLWCC and the KLWCT have jurisdiction to investigate and adjudicate war
crimes in Iraq and elsewhere for the following reasons:

1. The concept of law is not confined to enacted, formal law. Law is not
just a heathen word for power. Law is not confined to lex (posited
law). It covers jus (justice) and recht (right).The majestic
concept of "law" includes a higher, supra-legal, supra-national, field of
"natural law" derived from a superior source. While there is no agreement on
what this superior source is, throughout the ages people have supplemented
human law with transcendental principles derived from divine revelations,
nature, reason or intuition. A great deal of law is found, not made.

This type of “natural law thinking” was and is the motivating force in all
trials for crimes against humanity - whether at the Tokyo and Nuremberg
trials or the more recent trials in former Yugoslavia, Sudan and Sierra
Leone. In all these trials the guiding principle was that above and beyond
the law of the state there is a higher law to which the victims can appeal
to.

Throughout history this natural law thinking has inspired challenges to
unjust laws and oppressive regimes. It was natural law that was the basis
for the anti-apartheid struggle in South Africa, the civil rights movement
in the USA, the anti-colonial wave in Asia and Africa and the conviction of
Nazi criminals after World War II.

The world is facing
a similarly tragic situation as before World War II. The strong are
attacking the weak for their possessions. Pre-emptive and unilateral wars of
aggression are being waged. Genocides are raging. New holocausts are being
perpetrated. As before the rise of Nazism, there is no shortage of
apologists in Malaysia and abroad who are prepared to appease mass murderers
and mock those who raise their voice of protest against oppression.

2. Even if it is alleged that the KL proceedings have no legality, no one
can deny that they have legitimacy. Their legitimacy is derived from the
nobleness of the cause of peace and justice, the reverence for life and the
abhorrence of war as a means of solving disputes.

3. The KL
proceedings are inspired by the principle that wherever there is a right
there must be a remedy. Ubi jus ibi remedium. The families of the
650,000 innocents slaughtered in Iraq in the last three years, the thousands
more who have been tortured and the millions more who have been displaced
have no remedy in national or international courts.

Their country is under a brutal occupation and it is inconceivable that any
Iraqi court will prosecute members of the occupation force for war crimes.

American courts have no jurisdiction in Iraq and have even feigned
helplessness in relation to torture and unlawful detentions in American
controlled concentration camps in Guantanamo Bay and elsewhere.

The ICC has been approached by 240 complainants from Iraq. Its Chief
Prosecutor has most amazingly ruled that the complaints do not have
"sufficient gravity" to merit the initiation of a prosecution!

4. By far and large
international law on genocide, crimes against humanity, war crimes and wars
of aggression is applied selectively and in a racist and colonial fashion.
Except for the mass murders in Nazi Germany and former Yugoslavia, no other
crime perpetrated by Europeans and Americans has ever been prosecuted in
international courts. European, American and Australian colonisers have
committed genocide on four continents. The United States has bombed 28
countries since World War II. Europe and America are complicit in the
genocide that is raging unhindered in Palestine, Gaza and Lebanon. No bells
toll for the victims of mass murders in Hiroshima, Nagasaki, Vietnam,
Kampuchea, Laos, Afghanistan, Palestine, Lebanon, Chechnya, Chile, Argentina
and Nicaragua. No one has been prosecuted.

The KL War Crimes
Commission and Tribunal will, on the other hand, provide a forum to all,
irrespective of race, religion or nationality, who are victims of mass
crimes to make their case before the Commission and the Tribunal.

5. The Rome Statute
has a number of flaws that prevent horrendous war crimes, genocide, crimes
against humanity and the crime of aggression from being prosecuted.

First, the US under George Bush de-recognised the Rome Statute. As such,
Washington is not obliged to surrender any US politicians and Army Generals
for trial before the International Criminal Court. Criminals in the UK and
Australia belong to a ratifying state and as such are subject to the ICC’s
jurisdiction. Unfortunately they are being shielded by the ICC prosecutor
because in his opinion their crimes of complicity lack sufficient gravity!

Second, for a crime to be prosecuted before the ICC, it must be committed on
the territories of a member state of the ICC. Iraq and Afghanistan are
not parties to the ICC Statute and the bestialities committed there are,
therefore, exempt from the ICC’s jurisdiction. Only if these countries were
to sign the Statute (which is unlikely), the possibility of prosecution will
open up.

Third, Article 98 of
the Rome Statute provides that a country need not hand over a foreign
national to the ICC if it is prohibited from doing so by an agreement with
the national’s country. The American government has forced nearly 100
countries to sign such “Article 98 agreements” thereby making its war
criminals immune from international prosecution.

Fourth, the UN Security Council has the power to refer crimes committed by a
non-signatory to the ICC (as it did for Darfur). But due to its geo-politic,
racial and religious bias, the UNSC will not refer wrong-doers in the US,
UK, Poland, Italy or Australia to the ICC.

Fifth, the ICC can investigate a case only if national courts fail or are
unable to investigate a case. The major offending states, the US and UK are
putting up the charade of prosecuting low ranking soldiers but are ignoring
compelling evidence that the massacre of civilians, tortures and other
crimes against humanitarian law were authorized by top politicians.

Sixth, the US and
its allies committed the undoubted crime of an illegal war of aggression in
Iraq. But this crime, though mentioned in the Treaty, is not yet allowed to
be prosecuted because no definition of a "crime of aggression" has been
agreed upon.

Seventh, before mounting the Iraq invasion the US President had threatened
use of nuclear weapons. During the war the US and the UK used many weapons
of mass destruction that are banned in international law. But use of these
WMDs is not a crime under the ICC Statute. India had asked for inclusion of
nuclear weapons and WMDs as a crime against humanity. But the US disagreed
and the matter was not pursued.

6. The KL
proceedings are inspired by previous precedents of People's Tribunals e.g.
the Sir Bertrand Russell Tribunal in relation to America's war crimes in
Vietnam; the recent Tokyo Tribunal on Afghanistan; and the Turkish Tribunal
in relation to Iraq.

7. Such people’s
initiatives have basis in democratic theory, in human rights jurisprudence
and in the Charter of the United Nations.

Democracy permits
the powerless to organise against the powerful. Democracy permits NGOs to
raise their voice of concern on issues of national and international
concern. Only those without democratic impulses and with authoritarian and
fascist tendencies will argue that citizens’ initiatives must proceed only
with official and legal backing.

Our fidelity to
human rights demands that we do not remain silent in the face of mass
murders, the brutalization of a whole nation and the de-humanisation of a
whole people. We cannot remain apathetic if atrocities continue to be
committed and international institutions are comatose and content to be so.

The Charter of the
United Nations permits NGO involvement in world affairs. The Charter begins
with the words “We the peoples”. It provides for some UN agencies to
consult with people’s organizations. In fact approximately 1,000 NGOs have
official consultative status with UN agencies.

8. The fact that the KL War Crimes Tribunal cannot impose its judgment on
the aggressors is not the heart of the matter. The point is to expose
wrong-doing and to shame the criminals in the eyes of the world.

9. The fact that the
KLWCC and the KLWCT may have to proceed without the presence of the accused
is indeed troublesome. All accused will be notified and invited to be
represented. But if the accused refuse to respond, then the trial will
proceed in abstentia. This is not without precedent. After World War II many
Nazi criminals were prosecuted in their absence.

10. Admittedly, the
KLWCT suffers from many limitations. But many distinguished jurists from
around the world believe that it can make a significant impact.

It can mobilise the conscience of the world community.

It can report its
findings to the General Assembly of the United Nations with a view to a
“Uniting for Peace Resolution”.

It can submit its
findings to the ICC to enable the ICC to wake up from its stupor.

It can transmit the
report of its deliberations to the 104 countries that have ratified the Rome
statute. Some of these states like Germany and Belgium have laws that permit
prosecutions for genocide and for crimes against humanity no matter where
the offence was alleged to have been committed.

Finally, the KL War
Crimes Tribunal can refer its findings to many peace loving groups in the
USA and elsewhere and request them to exert democratic pressures on their
leaders to end this senseless slaughter of the innocents.